/CONGRESSIONAL REPOR'. 

/ ON 

WOMAN SUFFRAG 

The Majority and Minority Repor, * 

OF 

JUDICIARY 



HOUSE 03? REPRESENTATIVES 


WOODHULL MEMORIAL. 


* 




as. no 


NEW YORK: 

WOODHULL, OLAFLTN & CO., No. 44 BROAD STREET. 


1871. 






1 


J 


<# 


CONSTITUTIONAL EQUALITY. 



To the ELox. the Judiciary Committees of the Senate and 
the House of Representatives of the Congress of thh 
United States : 

The undersigned, Victoria C. Woodhull, having most respect¬ 
fully memorialized Congress for the passage of such laws as in its wis¬ 
dom shall seem necessary and proper to carry into effect the rights 
vested by the Constitution of the United States in the citizens to vote, 
without regard to sex, begs leave to submit to your honorable body the 
following in favor of her prayer in said Memorial which has been 
referred to your Committee : 

The public law of the world is founded upon the conceded fact 
that sovereignty cannot be forfeited or renounced. The sovereign 
power of this country is perpetual in the politically-organized people of 
the United States, and can neither be relinquished nor abandoned by 
any portion of them. The people in this Republic who confer sover¬ 
eignty are its citizens: in a monarchy the people are the subjects of 
sovereignty. All citizens of a republic by rightful act or implication 
confer sovereign power. All people of a monarchy are subjects who 
exist under its supreme shield and enjoy its immunities. 

The subject of a monarch takes municipal immunities from the 
sovereign as a gracious favor; but the woman citizen of this country has 
the inalienable “ sovereign” right of self-government in her own proper 
person . Those who look upon woman’s status by the dim light of the 
common law, which unfolded itself under the feudal and military insti¬ 
tutions that establish right upon physical power, cannot find any anal¬ 
ogy in the status of the woman citizen of this country, where the broad 
sunshine of our Constitution has enfranchised all. 

As sovereignty cannot be forfeited, relinquished or abandoned, 
those from whom it flows—the citizens—are equal in conferring the 
power, and should be equal in the enjoyment of its benefits and in the 
exercise of its rights and privileges. 

One portion of citizens have no power to deprive another portion of 
rights and privileges such as are possessed and exercised by them- 



SECOND PltONUNCIAMENTO. 


40l 


Ives. The male citizen has no more right to deprive the female citi- 
en of the free, public, political expression of opinion than the female 
citizen has to deprive the male citizen thereof. 

The sovereign will of the people is expressed in our written Con¬ 
stitution, which is the supreme law of the land. The Constitution 
makes no distinction of sex. The Constitution defines a woman born 
or naturalized in the United States, and subject to the jurisdiction 
hereof, to be a citizen. It recognizes the right of citizens to vote. It 
declares that the right of citizens of the United States to vote shall not 
be denied or abridged by the United States or by any State on account 
of “race, color or previous condition of servitude.” 

Women, white and black, belong to races; although to different 
races. A race of people comprises all the people, male and female. 
The right to vote cannot be denied on account of race. All people 
included in the term race have the right to vote, unless otherwise 
prohibited. 

Women of all races are white, black or some intermediate color. 
Color comprises all people, of all races and both sexes. The right to 
vote cannot be denied on account of color. All people included in the 
term color have the right to vote unless otherwise prohibited. 

With the right to vote sex has nothing to do. Race and color 
include all people of both sexes. All people of both sexes have the 
right to vote, unless prohibited by special limiting terms less compre¬ 
hensive than race or color. No such limiting terms exist in the Con¬ 
stitution. 

Women, white and black, have from time immemorial groaned under 
what is properly termed in the Constitution “previous condition of 
servitude.” 

Women are the equals of men before the law, and are equal in all 
their rights as citizens. 

Women are debarred from voting in some parts of the United 
States, although they are allowed to exercise that right elsewhere. 

Women were formerly permitted to vote in places where they are 
now debarred therefrom. 

The Naturalization Laws of the United States expressly provide 
for the naturalization of women. 

But the right to vote has only lately been distinctly declared by 
the Constitution to be inalienable, under three distinct conditions—in 
all of which woman is distinctly embraced. 

The citizen who is taxed should also have a voice in the subject 


SECOND PRONUNCIAMENTO. 


Ave clause in reference to actions on the part of those citizens haying 
reference solely to the necessary functions of the General Government, 
such as the election of representatives and senators to Congress, whose 
election the Constitution expressly gives Congress the power to regu¬ 
late ? 

S. C., 1847 : Fox vs. Ohio, 5 Howard, 410. 

Your memorialist complains of the existence of State Laws, and 
prays Congress, by appropriate legislation, to declare them, as they are, 
annulled, and to give vitality to the Constitution under its power 
to make and alter the regulations of the States contravening the same. 

It may be urged in opposition that the Courts have power, and 
should declare upon this subject. 

The Supreme Court has the power, and it would be its duty so to 
declare the law ; but the Court will not do so unless a determination of 
such point as shall arise make it necessary to the d jiermination of a 
controversy, and hence a case must be presented in which there can be 
no rational doubt. All this would subject the aggrieved parties to much 
dilatory, expensive and needless litigation, which your memorialist 
prays your Honorable Body to dispense with by appropriate legislation, 
as there can be no purpose in special arguments “ ad inconvenient!,” 
enlarging or contracting the import of the language of theConstitution. 

Therefore , Believing firmly in the right of citizens to freely ap¬ 
proach those in whose hands their destiny is placed, under the Provi¬ 
dence of God, your memorialist has frankly, but humbly, appealed to 
you, and prays that the wisdom of Congress may be moved to action in 
this matter for the benefit and the increased happiness of our beloved 
country. 

Most respectfully submitted, 

VICTORIA C. WOODHULL. 

Dated New York, January 2, 1871. 


THE MEMORIAL OF VICTORIA C. WOODHULL. 

To the Honorable the Senate and House of Representatives of the United 
States in Congress assembled, respectfully showeth: 

That she was born in the State of Ohio, and is above the age of twenty-one years ; 
that she has resided in the State of New York during the past three years ; that Bho is 
still a resident thereof, and that she is a citizen of the United States, as declared by the 
XIV. Article of Amendments to the Constitution of the United States. 

That since the adoption of the XV. Article of Amendments to the Constitution, 
neither the State of New York nor any other State, nor any Territory, has passed any law 
to abridge the right of any citizen of the United States to vote, as established by said arti¬ 
cle, neither on account of sex or otherwise: 

That, nevertheless, the right to vote is denied to women citizens of the United States, 
by the operation of Election Laws in the several States and Territories, which laws were 
enacted prior to the adoption of the said XV. Article, and which are inconsistent with the 
Constitution as amended, and therefore, are void and of no effect; but which, being still 
enforced by the said States and Territories, render the Constitution inoperative as regards 
the right of women citizens to vote : 

And whereas, Article VI., Section 2, declares u That this Constitution, and the laws 
of the United States which shall be made in pursuance thereof, and all treaties made, or 
which shall be made under the authority of the United States, shall be the supreme law of 
the land; and all judges in every State shall be bound thereby, anything in the Constitution 
and laws of any State to the contrary notwithstanding:” 

And whereas, no distinction between citizens is made in the Constitution of the 
United States on account of sex; but the XV. article of Amendments to it provides that 
“ No State shall make or enforce any law which shall abridge the privileges jyid immuni¬ 
ties of citizens of the United States, nor deny to any person within its jurisdiction the 
equal protection of the laws ” 

And whereas, Congress has power to make laws which shall be necessary and proper 
for carrying into execution all powers vested by the Constitution in the Government of the 
-United States, and to make or alter all regulations in relation to holding elections for sen¬ 
ators or representatives, and especially to enforce, by appropriate legislation, the pro¬ 
visions of the said XIV. Article: 

And whereas, the continuance of the enforcement of said local election laws, deny¬ 
ing and abridging the right of citizens to vote on account .if sex, is a grievance to your me¬ 
morialist and to various other persons, citizens of the United States, being women— 

Therefore, your memorialist would most respectfully petition your Honorable Bodies 
to make such laws as in the wisdom of Congress shall be necessary and proper for carrying 
into execution the right vested by the Constitution in the Citizens of the United States to 
vote, without regard to sex. 

And your memorialist will ever pray. VICTORIA C. WOODHULL. 

Dated New York City, December 19, 1870. 


'D 


SECOND PRONUNCIAMENTO. 


matter of taxation. “No taxation without representation” is a right 
which was fundamentally established at the very birth of our country’s 
independence ; and by what ethics does any free government impose 
taxes on women without giving them a voice upon the subject or a 
participation in the public declaration as to how and by whom these 
taxes shall be applied for common public use ? 

Women are free to own and to control property, separate and 
apart from males, and they are held responsible in their own proper 
persons, in every particular, as well as men, in and out of court 

Women have the same inalienable right to life, liberty and the 
pursuit of happiness that men have. Why have they not this right 
politically, as well as men ? 

Women constitute a majority of the people of this country—they 
hold vast portions of the nation’s wealth and pay a proportionate share 
of the taxes. They are intrusted with the most holy duties and the 
most vital responsibilities of society; they bear, rear and educate men ; 
they train and mould their characters; they inspire the noblest im¬ 
pulses in men; they often hold the accumulated fortunes of a man’s 
life for the safety of the family and as guardians of the infants, and 
yet they are debarred from uttering any opinion, by public vote, as to 
the management by public servants of these interests ; they are the 
secret counsellors, the best advisers, the most devoted aids in the most 
trying periods of men’s lives, and yet men shrink from trusting them 
in the common questions of ordinary politics. Men trust women in 
the market, in the shop, on the highway and the railroad, and in all 
other public places and assemblies, but •when they propose to carry a 
slip of paper with a name upon it to the polls, they fear them. Never¬ 
theless, as citizens women have the right to vote; they are part and 
parcel of that great element in which the sovereign power of the land 
had birth: and it is by usurpation only that men debar them from 
their right to vote. The American nation, in its march onward and 
upward, cannot publicly choke the intellectual and political activity 
of half its citizens by narrow statutes. The will of the entire people 
is the true basis of republican government, and a free expression of 
that will by the public vote of all citizens, without distinctions of 
race, color, occupation or sex, is the only means by which that will can 
be ascertained. As the world has advanced in civilization and cul¬ 
ture; as mind has risen in its dominion over matter; as the principle 
of justice and moral right has gained sway, and merely physically or¬ 
ganized power has yielded thereto ; as the might of right has sup- 


SECOND PRONUNCIAMENTO. 


planted the right of might, so have the rights of women become mor^ 
fully recognized, and that recognition is the result of the development 
of the minds of men, which through the ages she has polished, and 
thereby heightened the lustre of civilization. 

It was reserved for our great country to recognize by constitutional 
enactment that political equality of all citizens which religion, affection 
and common sense should have long since accorded; it was reserved 
for America to sweep away the mist of prejudice and ignorance, and 
that chivalric condescension of a darker age, for in the language of 
Holy Writ, “ The night is far spent, the day is at hand, let us therefore 
cast off the work of darkness, and let us put on the armor of light. 
Let us walk honestly as in the day.” 

It may be argued against the proposition that tnere still remains 
upon the statute books of some States the word “ male ” to an exclu¬ 
sion, but as the Constitution in its paramount character can only be 
read by the light of the established principle, ita lex Scripta est; and as 
the subject of sex is not mentioned and the Constitution is not limited 
either in terms or by necessary implication in the general rights of citi* 
zens to vote, this right cannot be limited on account of anything in tho 
spirit of inferior or previous enactments upon a subject which is 
not mentioned in the supreme law. A different construction would 
destroy a vested right in a portion of the citizens, and this no legislature 
has a right to do without compensation, and nothing can compensate a 
citizen for the loss of his or her suffrage—its value is equal to the value 
of life. Heither can it be presumed that women are to be kept from the 
polls as a mere police regulation: it is to be hoped, at least, that police 
regulations in their case need not be very active. The effect of the 
amendments to the Constitution must be to annul the power over this 
subject in the States whether past, present or future, which is contrary 
to the amendments. The amendments would even arrest the action of 
the Supreme Court in cases pending before it prior to their adoption, 
and operate as an absolute prohibition to the exercise of any other juris¬ 
diction than merely to dismiss the suit. 

3 Dali., 382 ; 6 Wheaton, 405; 9 Id., 868; 3d Circ., Pa., 1832. 

And if the restrictions contained in the Constitution as to color, 
race or servitude, were designed to limit the State governments in ref¬ 
erence to their own citizens, and were intended to operate also as re¬ 
strictions on the Federal power, and to prevent interference with the rights 
of the State and its citizens’ how then can the State restrict citizens of 
the United States in the exercise of rights not mentioned in any restric- 


,lf ?a C ™ a ’ | HOUSE OF REPRESENTATIVES. { 


VICTORIA O. WOODITULL. 


January 30, 1871. —Recommitted to tlio Committee on the Judiciary and ordered to 

be printed. 


Mr. Bingham, from the Committee on the Judiciary, made the following 


REPORT. 


The Committee on the Judiciary , to whom was referred the Memorial of 
Victoria C. Woodhull , having considered the same , make the following 

report: 

The Memorialist asks the enactment of a law by Congress which shall secure to citi 
zens of the United States in the several States the right to vote without regard to sex.’ 
Since the adoption of the fourteenth amendment of the Constitution, there is no longer un ¬ 
reason to doubt that all persons, born or naturalized in the United States, and subject t' 
the jurisdiction thereof, are citizens of the United States and of the State wherein they re¬ 
side, for that is the express declaration of the amendment. 

The clause of the fourteenth amendment, 11 No State shall make or enforce any law 
which shall abridge the privileges or immunities of citizens of the United States,” does not, 
in the opinion of the committee, refer to privileges and immunities of citizens of the United 
States other than those privileges and immunities embraced in the original text of the Con¬ 
stitution, Article IV., Section 2. The fourteenth amendment, it is believed, did not add to 
the privileges or immunities before mentioned, but was deemed necessary for their en¬ 
forcement, as an express limitation upon the powers of the States. It has been judicially 
determined that the first eieht articles of amendment of t he Constitution were not limita¬ 
tions on the power of the States, and it was apprehended that the same might be held of 
the provision of the second section, fourth article. 

To remedy this defect of the Consti ution, the express limitations upon the States 
contained in the first section of the fourteenth amendment, together with the grant of 
power in Congress to enforce them by legislation, were incorporated in the Constitution. 
The words “ citizens of the United States,” and “citizens of the States,” as employed ia 
the fourteenth amendment, did not change or modify the relations of citizens of the State 
and Nation as they existed under the original Constitution. 

Attorney General Bates gave the opinion that the Constitution uses the word “ citi¬ 
zen,” only to express the political quality of the individual in his relation to the Nation; to 
declare that he is a member of the body politic, and bound to it by the reciprocal obliga¬ 
tion of allegiance on the one side and protection on the other. The phrase “ a citizen 
of the United States,” without addition or qualification, means neither more nor less thaa 
a member of the Nation. (Opinion of Attorney General Bates on citizenship.) 

Tne Supreme Court of the United States has ruled that, according to the express 
words and clear meaning of the second section, fourth article of the Constitution, no privi¬ 
leges are secured by it except those which belong to citizenship. (Connor et al. vs. Elliott 
etal. } 18 Howard, 593., 

In Corfield vs. Coryell, 4 Washington Circuit Court Reports, 380, the court say: 

The inquiry is, what are the privileges and immunities of citizens in the several States t Wq 
feel no hesitation in confining these expressions to those privileges and immunities which arc in 







97 


their nature fundamental; which belong of right to the citizens of all free governments ; ana 
have at all times been enjoyed by the citizens of the several States which compose this Union, 
the time of their becoming free, independent and sovereign. What these fundamental principle* 
would, perhaps, be more tedious than difficult to enumerate. They may, however, be all comp 
hend< d under the following general heads: Protection by the Government; the enjoyment of li. 
and liberty, with the right to acquire and possess property of every kind, and to pursue and obtair 
happiness and safety, subject, nevertheless, to such restraints as the Government may justly pre¬ 
scribe for the general good of the whole; the right of a citizen of one State to pass through or to 
reside in any other State, for the purpose of trade, agriculture, professional pursuits, or otherwise; 
to claim the benefit of the writ of habeas corjn/s; to institute and maintain actions of an y kind in 
the courts of the State; to take, hold, and dispose of property, either real or personal; and an ex¬ 
emption from higher taxes or impositions than are paid by the other citizens of the State, may be 
mentioned as some of the particular privileges and immunities of citizens which are clearly embraced 
by the general description of privileges deemed to be fundamental; to which may be added the 
elective franchise, as regulated and established by the laws or Constitution of the State in which it 
is to be exercised. * * * But we cannot accede to the proposition which was in¬ 

sisted on by the counsel, that under this provision of the Constitution, sec. 2., art. 4, the citizens 
of the several States are permitted to participate in all the rights which belong exclusively to the 
citizens of any other particular State. 

The learned Justice Story declared that the intention of the clause—“the citizens of 
each State shall be entitled to all the privileges and immunities of citizens in the several 
States ”—was to confer on the citizens of each State a general citizenship, and communi¬ 
cated all the privileges and immunities which a citizen of the same State would be entitled 
to under the same circumstances. (Story on the Constitution, vol. 2, p. 605.) 

In the case of the Bank of the United States vs. Primrose, in the Supreme Court of 
the United States, Mr. Webster said: 


That this article in the Constitution (art. 4., sec. 2) does not confer on the citizens of each State 
political rights in every otuer State, is admitted. A citizen of Pennsylvania cannot go into Virginia 
and vote at any election in that State, though when he has acquired a residence in Virginia, and is 
otherwise qualified and is required by the constitution (of Virginia), he becomes, without formal 
adoption as a citizen ot Virginia, a citizen of that State politically. (Webster’s Works, vol. 6, p. 112.) 

It must be obvious that Mr. Webster was of opinion that the privileges and immuni¬ 
ties of citizens, guaranteed to them in the several States, did not include the privilege of 
the elective franchise otherwise than as secured by the State Constitution. For, after 
making the statement above quoted, that a citizen of Pennsylvania cannoc go into Vir¬ 
ginia and vote, Mr. Webster adds, “ but for the purposes of trade, commerce, buying and 
selling, it is evidently not in the power of any State to impose any hindrance or embrass- 
ment, &c., upon citizens of ^ther States, or to place them, going there, upon a different 
footing from her own citizens.’’ (Ib.) 

The proposition is clear that no citizen of the United States can rightfully vote in 
any State of this Union w ho has not the qualifications required by the Constitution of the 
State in which the right is claimed to be exercis* d, except as to such conditions in the 
constitutions of such States as deny the right to vote to citizens resident therein “ on ac¬ 
count of race, color, or previous condition of servitude.” 

The adoption of the fifteenth amendment to the Constitution imposing these three 
limitations upon the powder of the several States, was by necessary implication, a declara- 
tion that the States had the power to regulate by a uniform rule the conditions upon which 
the elective franchise should be exercised by citizens of the United States resident therein. 
The limitations specified in the fifteenth amendment exclude the conclusion that a State of 
this Union, having a government republican in form, may not prescribe conditions upon 
which alone citizens may vote other than those prohibited. It can hardly be said that a 
State law which excludes from voting women citizens, minor citizens, and non-resident 
citizens of the United States, on account of sex, minority or domicil, is a denial of the 
right to vote on account of race, color, or previous condition of servitude. 

It may be further added that the second section of the fourteenth amendment by 
the provision that “ when the right to vote at any election for the choice of electors of 
President and Vice-President of the United States, Representatives in Congress, or execu¬ 
tive and judicial officers of the State, or the members of the legislature thereof, is denied 
to any of the male inhabitants of such State, being twenty-one years of age, & citizen of 
the United Sates, or in any way abridged, except for participation in rebellion or other 
crime, the basis of representation therein shall be reduced in the proportion which tho 
nuuiber of such male citizens shall bear to the whole number of male citizens twenty-one 
years of age in such State,” implies that the several States may restrict the elective fran¬ 
chise as to other than male citizens. In disposing of this question effect must be given if 
possible, to every provision of the Constitution. Article 1, section 2, of the Constitution 
provides: 


That the House of Representatives shall he composed of members chosen every second vear 
by the people of the several States, and the electors in each State shall have the qualifications reouisite 
for electors of the most numerous branch of the State legislature. 4 


This provision has always been construed to vest in the several States the exclusive 
right to prescribe the qualifications of elector* for the most numerous branch of the State 


98 


/ture, and therefore for members of Congress. And this interpretation is supported 
•ciion 4, article 1, of the Constitution, which provides— 

That the time, places, and manner of holding elections for Senators and Representatives shall 
/ft prescribed in each State by the legislature thereof; but the Congress may at any time by law 
make or alter such regulations except as to the place of choosing Senators. 

Now it is submitted, if it had been intended that Congress should prescribe tbe qual¬ 
ifications of electors, that the grant would have read : The Congress may at any time by 
law make or alter such regulations, and also prescribe the qualifications of electors, &c. 
The power, on the contrary, is limited exclusively to the time, place and manner, and 
does m*t extend to the qualification of the electors. This pow T er to prescribe the qualifica¬ 
tion ot electors in the several States has always been exercised, and is, to-day, by tbe 
several States of the Union ; and we apprehend, until the Constitution shall be changed, 
will continue to be so exercised, subject only to the express limitations imposed by the 
Constitution upon the several States, before noticed. We are of opinion, therefore, that it 
is not competent for the Congress of the United States to establish by law the right to 
vote without regard to sex in the several States of this Union, without the consent of the 
people of such States, and against their constitutions and laws ; and that such legislation 
would be, in our judgment, a violation of the Constitution of tbe United States, and of the 
rights reserved to tbe States respectively by the Constitution. Is it is undoubtedly the 
right of the people of the several States so to reform their constitutions and laws as to se¬ 
cure the equal exercise of the right of suffrage, at all elections held therein under the Con¬ 
stitution of the United States, to all citizens, without regard to sex ; and as public opinion 
creates constitutions and governments in the several States, it is not to be doubted that 
whenever, in any State, the people are of opinion that such a reform is advisable, it will be 
made. 

If, however, as is claimed in the memorial referred to, the right to vote “ is vested by 
the Constitution in the citizens of the United States without regard to sex,” that right can 
be established in the courts without further legislation. 

The suggestion is made that Congress, by a mere declaratory act, shall say that the 
construction claimed in the memorial is the true construction of tbe Constitution, or in 
other words, that by the Constitution of the United States the right to vote is vested in 
citizens of the United States “ without regard to sex,” anything in the constitution and 
laws of any State to the contrary notwithstanding. In the opinion of tbe committee, such 
declaratory act is not authorized by the Constitution nor within the legislative power of 
Congress. We therefore recommend the adoption of the following resolution ; 

Resolved , That the prayer of the petitioner be not granted, that the memorial be laid 
on the table, and that the Committee on the Judiciary be discharged from the further con- 
bideration of the subject. 


f 


99 


41st Congress, ? HOUSE OF REPRESENTATIVES. $ Report ^ 

3d Session. $ _•_j_ Part 2. 

VICTORIA C. W OODHULL. 


February 1, 1871. — Ordered to be Printed. 


Mr. Loughridge, from tlie Committee on the Judiciary, submitted tko 

following aa the 

VIEWS OF THE MINORITY. 


In the matter of the Memorial of Victoria C. Woodhull , referred hy the 
House to the Committee on the Judiciary, the undersigned , members of 
the Committee, being unable to agree to the report of the committee, pre¬ 
sent the following as their views upon the sidgect of the Memorial: 

The memorialist sets forth that she is a native born citizen of the United States, and 
a resident thereof; that she is of adult age, and has resided in the State of New York for 
three years past; that by the Constitution of the United States she is guaranteed the right 
of suffrage; but that she is, by the laws of the State of New York, denied the exercise of 
that right; and that by the laws of different Slates and Territories the privilege of voting 
is denied to all the female citizens of the United States; and petitions for relief by the 
enactment of some law to enforce the provisions of the Constitution, by which such right 
is guaranteed. 

The question presented is one of exceeding interest and importance, involving as it 
does the constitutional rights not only of the memorialist but of more than one half of the 
citizens of the United States—a question of constitutional law in which the civil and natural 
rights of the citizen are involved. Questions of property or of expediency have nothing to 
do with it. The question is not *‘ Would it be expedient to extend the right of suffrage to 
women,” but, “ Have women citizens that right by the Constitution as it is.” 

A question of this kind should be met fairly and investigated in that generous and 
liberal spirit characteristic of the age, and decided upon principles of justice, of right, and 
of law. 

It is claimed by many that to concede to woman the right of suffrage would be an 
innovation upon the laws of nature, and upon the theory and practice of the w orld for ages 
in the past, and especially an innovation upon the common law of England, which was 
originally the law of this country, and w hich is the foundation of our Ugal fabric. 

If we were to admit the truth of this, it is yet no argument against the proposition, if 
the right claimed exists, and is established by the Constitution of the United States. The 
question is to be decided by the Constitution and the fundamental principles of our Govern¬ 
ment, and not by the usage and dogmas of the past. 

It ia a gratifying fact that the world is advancing in political science, an J gradually 
adopting more liberal and rational theories of government, 

The establishment of this Government upon the principles of the declaration of Inde¬ 
pendence w as in itself a great innovation upon the theories and practice of the world, and 
opened a new chapter in the history of the human race, and its progress toward perfect 
civil and political liberty. 

But it is not admitted that the universal usage of the past has been in opposition to the 
exercise of political power by women. The highest positions of civil power have from time 
to time been, filled by women in all ages of the w orld, and the question of the right of 
woman to a voice in government is not a new one by any means, but has been agitated, and 
the right acknowledged and exercised, in governments far less free and liberal than ours. 






100 


the Roman Republic, during its long and glorious career, women occupied a higher 
,-lon, as to political rights and privileges, than in any other contemporaneous govern- 
.it. In England unmarried women have, by the laws of that country, always been corn- 
tent to vote and to hold civil offices, if qualified in other respects; at least such is the 
weight of authority. In “Callis upon Sewers,” an old English work, will be found a 
discussion of the question as to the right of women to hold office in England. 

The learned and distinguished author uses the following language: 

And for temporal governments I have observed women to have from time to time been admitted 
to the highest places; for in ancient Roman histories I find Eudocia and Theodora admitted at 
several times into the sole government of the empire ;and here in England our late famous Queen 
Elizabeth, whose government was most renowned ; and Semiramis governed Syria; and the Queen of 
the South, which came to visit Solomon, for anything that appears to the contrary, was a 6ole queen; 
and to fall a degree lower, we have precedents that King Richard the First and King Henry the Fifth 
appointed by commissions their mothers to be regents of this realm in their absence in France. 

But yet I will descend a step lower; and doth not our law, temporal and spiritual, admit of 
women to be executrixes and administratrixes ? And thereby they have the rule or ordering of great 
estates, and many times they are guardianesses in chivalry, and have hereby also the government of 
many great heirs in the kingdom and of their own estates. 

So by these cases itappearetli that the common law of this kingdom submitted many things to 
their government; yet the statute of justices of the peace is like to Jethro's counsel to Moses, for 
there they speak of men to be justices, and thereby eeemeth to exclude women; hut our statute of 
sewers is, “Commission of sewers shall be granted by the King to such person and persons as the 
lords should appoint.” So the word persons stands indifferently for either sex. I am of the opinion, 
for the authorities, reasons and causes aforesaid, that this honorable conntess being put into the 
commission of the sewers, the same is warrantable by the law ; and the ordinances and decrees made 
by her and the other commissions of sewers are not to be impeached for that cause of her sex. 

As it is said by a recent writer: 

Even a present in England the idea of women holding official station is not so strange as in 
the United States. TheCounress ofPembrokehad the officeof sheritf of Westmoreland and exercised 
it in person. At the assizes she sat with the judges on the bench. In a reported case it is stated by 
counsel and assented to by the court that a woman is capable of serving in almost a.l the offices of the 
kingdom. 

As to the right of women to vote by the common law of England, the authorities are 
clear. In the English Law Magazine for 1868-69, vol. 26, page 120, will be found re¬ 
ported the case of the app.ication of Jane Allen, who claimed to be entered upon the 
list of voters of the Parish of St. Giles, under the reform act of 1867, which act provides 
as follows : Every man shall, in and after the year 1868, be entitled to bo registered as a 
voter, and when registered to vote for a member or members to serve in Parliament, who is 
qualified as follows: 1st. Is of full age and not subject to any legal incapacity, &c., &c. 

It was decided by the court that the claimant had the right to be registered and to 
vote; that by the English law, the terra man, as used in that statute, included woman. 
In that case the common law of England upon that question was fully and ably reviewed, 
and we may be excused for quoting at some length; 

And as to what has been said of there being no such adjudged cases, I must say that it is per¬ 
fectly cleur that not perhaps in either of three cases reported by Mr. Sha ;n, but in those of Catharine 
wv. Surry, Coates vs. Lyle, and Holt VS. Lyle,three cases of somewhat greater antiquity, the right of 
women freeholders was allowed by the courts. These three cases were decided by the judges in the 
reign of James I (A. D. 1612). Although no printed report of them exists, I find that in the case oj 
Oliver*. Ingraham, they were repeatedly cited by the lord chief justice of the Kings Bench in the 
course of four great arguments in that case, the case being reargued three times (7 Mod., 264), and 
the greatest respect was manifested by the whole court for those precedents. Their importance is all 
the greater when we consider what the matter was upon which King James’ judges sitting in West-- 
minster Hall had to decide. It was not simply the case of a mere occupier, inhabitant, or scot or lot 
voter. Therefore the question did not turn upon the purport of a special custom, or a chai ter, or a 
local act of Parliament, or even of the common right in this or that borough. But it was that very 
matter and question which has been mooted in the dictum of Lord Coke, the freeholder's franchise 
in the shire, and upon that the decision in each case expressly was, that a feme sole shall vote il 
she hath a freehold, and that if she be not a feme sole, but a feme covert having freehold, then 
her husband during her coverture shall vote in her right. These, then, are so many express decisions 
which at ouce displace Lord Coke’s unsupported assertion and declare the law so as to constrain my 
judgment. It is sometimes said, when reference is made to precedents of this kind, that they have 
never been approve’d by the bar. But that cannot be said of these. Hakewell, the contemporary 
of Lord Coke and one of the greatest of all parliamentary lawyers then living—for even Selden and 
Granvil were not greater than Hakewell—left behind him the manuscript to which I have referred, 
with his comments on those cases. 

Sir William Lee, chief justice, in his judgment in the case of Olive vs. Ingraham, ex' 
pressly says that he had persued them, and tint they contained the expression of Hake- 
well’s entire approval of the principles upon which they were decided, and ot the results 
deduced: and we have the statement ot Lord Chief Justice Lee, who had carefully ex¬ 
amined those cases, that in the case of Holtzs. Lyle, it was determined that a feme sole 
freeholder may claim a vote for Parliament men; but if married, her husband must vote 
for her. 

In the case of Olive vs. Ingraham, Justice Probyn, says : 

The case of ITolt vs. Lyle, lately mentioned by oui Lord Chief Justice, is a very strong cise ; 
“ They who pay ought to choose whom, they shall pay." And the Lord Chief Justice seemed t > h *. 
assented to thatgeuoral proposition, as authority lor the correlative proposition, that ” women, \. .. a 


101 


fde, had a right to vote.” At all events, there is here the strongest possible evidence that 
reign of James I, the feme sole , being a freeholder of a country, or what is the same thing, 
county, of a city, or town, or borough, where, of custom, freeholders had the right to vote, not >. 
had, but exercised the parliamentary franchise. If married, she could not vote in respect mercl) 
her freehold, not because of the incapacities of coverture, but for this simple reason, that, by the a, 
of marriage, which is an act of law, the title of the feme sole freeholder becomes vested for life in thk 
husband. The qualification to vote was not personal, but real; consequently, her right to vote 
became suspended as soon and for as long as she was married. I am bound to consider that the 
question as to what weight is due to the dictum of my Lord Coke is entirely disposed of by those 
cases from the reign of James I and George II, and that the authority of the latter is unimpeached by 
any later authority, as the cases of Rex. vs. Stubles, and Regina vs. Aberavon, abundantly show. 

In Anstey’s Notes on the New Reform Act of 1867, the authorities and precedents 
upon the right of women to vote in England are examined and summed up, and the author 
concludes: 

It is submitted that the weight of authority is very greatly in favor of the female right of suf¬ 
frage. Indeed, the authority against it is contained in the short and hasty dictum of Lord Coke, 
refered to above. It was set down by him in his last and least authoritive institute, and it is certain 
that he has been followed neither by the great lawyers of his time nor by the judicature. The princi¬ 
ples of the law in relation to the suffrage of females will be found in Coates vs. Lyle, Holt vs Ingra- 
ham, and The King vs. Stubles, cases decided under the strict rules for the construction of statutes. 

It cannot be questioned that from time whereof the memory of man runneth not to 
the contrary, unmarried women have been by the laws of England competent voters, sub¬ 
ject to the freehold qualification which applied alike to men and women. Married women 
could not vote because they were not freeholders ; by the common law their property upon 
marriage became vested in the husband. 

So that it appears that the admission of woman to participation in the affairs of 
government would not be so much of an innovation upon the theories and usage of tlia 
past as is by some supposed. 

In England the theory was that in property representation, all property should be rep¬ 
resented. Here the theory is that of personal representation, which of course, if carried out 
fully, includes the representation of all property. In England, as we have seen, the owner 
of the property, whether male or female was entitled to representation, no distinction being 
made on account of sex. If the doctrine contended for by the majority of the committee 
be correct, then this Government is less liberal upon this question than the government of 
England has been for hundreds of years, for there is in this country a large class of citizens 
of adult age, and owners in their own right of large amounts of property, and who pay a 
large proportion of the taxes to support the Government, who are denied any representa¬ 
tion whatever, either for themselves or their property—unmarried women, of whom it can¬ 
not be said that their interests are represented by their husbands. In their case, neither 
the English nor the American theory of representation is carried out, and this utter denial 
of representation is justified upon the ground alone that this class of citizens are women. 

Surely we cannot be so much less liberal than our English ancestors! Surely the 
Constitution of this Republic does not sanction an injustice so indefensible as that! 

By the fourteenth amendment of the Constitution of the United States, what consti¬ 
tutes citizenship of the United States, is for the first time declared, and who are included 
by the term citizen. Upon this question, before that time, there had been much discussion 
judicial, political and general, and no distinct and definite definition of qualification had 
been settled. 

The people of the United States determined this question by the fourteenth amend¬ 
ment to the Constitution, which declares that— 

All persons born cr naturalized in the United States and subject to the jurisdiction thereof 
are citizens of the United States, and of the State wherein they reside. No State shall make or enforce 
anj law which shall abridge the privileges or immunities of citizens of the United States • nor shall 
any State deprive any person of life, liberty, or property, without due process of law: nor deny to any 
person within its jurisdiction the equal protection of the law. 7 

This amendment, after declaring who are citizens of the United States, and thus 
fixing but one grade of citizenship, which insures to all citizens alike all the privileges 
immunities and rights which accrue to that condition, goes on in the same section and pro¬ 
hibits these privileges and immunities from abridgment by the States. 

Whatever these “privileges and immunities” are, they attach to the female citizen 
equally with the male. It is implied by this amendment that they are inherent that they 
belong to citizenship as such, for they are not therein specified or enumerated. ’ 

The majority of the committee hold that the privileges guaranteed by the fourteenth 
amendment do not refer to any other than the privileges embraced in section 2, of article 
4, of the original text. 

The committee certainly did not duly consider this unjustified statement. 

Section 2, of article 4, provides for the privileges of “ citizens of the States” while the 
first section of the fourteenth amendment protects the privileges of “ citizens of the United 
States The terms citizens of the States aud citizens of the United States aro by no means 
convertible. 3 


102 


A circuit court of the United States seems to hold a different view of this question 
com that stated by the committee. 

In the case of The Live Stock Association vs. Crescent City (1st Abbott, 396), 
Justice Bradley, of the Supreme Court of the United States, delivering the opinion, use# 
the following language in relation to the 1st clause of the 14th amendment: 

The new prohibition that “no State shall make or enforce any law which 6hnll abridge the 
privileges or immunities of citizens of the United States” is not identical with the clause in the Con¬ 
stitution which declared that “the citizens of each State shall be entitled to all the privileges and 
immunities of citizens in the several States.” It embraces much more. 

It is possible that those who framed the article were not themselves aware of the far-reaching 
character of its terms, yet if the amendment does in fact bear a broader meaning, and does extend its 
protecting shield over those who were never thought of when it was conceived and put in form, and 
does reach social evils which were never before prohibited by constitutional enactment, it is to be 
presumed that the American people, in giving it their imprimatur, understood what they were doing 
and meant to decree what in fact they have decreed. 

The “privileges and immunities” secured by the original Constitution were only such as each 
State gave to its own citizens, * * * * but the fourteenth amendment pro¬ 

hibits any State from abridging the privileges or immunities of citizens of tne United States, whether 
its own citizens or any others. It not merely requires equality of privileges, but it demands that 
the privileges and immunities of all citizens shall be absolutely unabridged and unimpaired. 

In the same opinion, after enumerating some of the “ privileges” of the citizens, 
such as were pertinent to the case on trial, but declining to enumerate all, the court lurther 
says: 

These privileges cannot be invaded without sapping the very foundation of republican govern¬ 
ment. A republican government is not merely a government of the people, but it is a free govern¬ 
ment. * * * * It was very ably contended on the part of the defendants 

that the fourteenth amendment was intended only to secure to all citizens equal capacities before the 
law. That was at first our view of it. But it does not 60 read. The language is, “No State shall 
abridge the privileges or immunities of citizens of the United States.” What are the privileges and 
immunities of the citizens of the United States? Are they capacities merely? Are they not also 
rights ? 

The court i* this seems to intimate very strongly that the amendment was intended 
to secure the natural rights of citizens, as well as their equal capacities before the law. 

In a case in the supreme court of Georgia, in 1869, the question was before the court 
whether a negro was competent to hold office in the State of Georgia. The case was ably 
argued on both sides, Mr. Akerman, the present Attorney General of the United States, 
being of counsel for the petitioner. Although the point wag made and argued fully, that 
the right to vote and hold office were both included in the privileges and immunities of 
citizens, and were thus guaranteed by the fourteenth amendment, yet that point was not 
d.reetly passed upon by the court, the court holding that under the laws and constitution 
nf Georgia the negro citizen had the right claimed. In delivering the opinion, Chief Justice 
Brown said: 

It is necessary to the decision of this case to inquire what are the “ privileges and immunities” 
of a citizen, which are guaranteed oy the fourteenth amendment to the Constitution of the United 
States. Whatever they may be, they are protected against all abridgement by legislation * * 

Whether the “ privileges and immunities” of the citizen embrace political rights, including the right 
to hold office, I need not now inquire. If they do, that right is guaranteed alike by the Constitution 
c f the United States and of Georgia, and is beyond the control of the legislature. 

In the opinion of Justice McKay, among other propositions, ho lays down the following. 

2d. The rights of the people of this State, white and black, are not granted to them by the 
constitution thereof; the object and effect of that instrument is not to give, but to restrain, deny, 
regulate and guarantee rights, and all persons recognized by that constitution as citizens of the State 
hav e equal, legal and, political rights, except as otherwise expressly declared. 

3d It is the settled and uniform sense of the word “ citizen,” when used in reference to tho 
citizens of the separate States of the United States, and to their rights as such citizens, that it 
describes a person entitled to every right, legal and political, enjoyed by any person in that State, unless 
there be some express exceptions made by positive law covering the particular persons, whose rights 
are in question. 

In the course of the argument of this case, Mr. Akerman used the following languago 
upon the point, as to whether citizenship carried with it the right to hold office: 

“ It may be profitable to inquire bow the term (citizen) has been understood in Geor¬ 
gia * -x- * jt will be seen that men whom Georgians have been accustomed 

to revere believed that citizenship in Georgia carried with it the right to hold office in tho 

absence of positive restrictions.” . 

The majority of the committee having started out with the erroneous hypothesis 
that the terra “ privileges of citizens of the United States,” as used in the fourteenth amend¬ 
ment, means no more than the term “ privileges of citizens,” as used in section 2 of article 

4, discuss tho question thus. . 

« The right of suffrage was not included in tho privileges of citizens as used m section 
2, article 4, therefore tln.t right is not included in the privileges of citizens of the United 

States, as used in the fourteenth amendment.” 

Their d remise being erroneous their whole argument fails. But if they were correct 


103 


in their premise, we yet claim that their second position is not sustained by the authorities 
and is shown to be fallacious by a consideration of the principles of free government. 

We claim that from the very nature of our government, the right of suffrage is a 
fundamental right of citizenship, not only included in the term “privileges of citizens of 
the United States/’ as used in the fourteenth amendment, but also included in the term as 
used in section 2 of article 4, and in this we claim we are sustained both by the authorities 
aud by reason. 

In Abbott vs. Bayley, (6 FicJc., 92,) the supreme court of Massachusetts says: 

“The privileges and immunities” secured to the people of each State, in every other State, 
•an be applied only to the case of a removal from one State into another. By such removal they 
become citizens of the adopted State without naturalization and have a right to sue and be sued as 
citizens; and yet this privilege is qualified and not absolute, for they cannot enjoy the right of suf¬ 
frage or eligibility to oftice without such term of residence as shall be prescribed by the constitution 
and laws of the State into which they shall remove. 

This case fully recognizes the right of suffrage as one of the“ privileges of the ci izen,’ f 
subject to the right of the State to regulate as to the term of residence —the same principle 
was laid down in Corfield vs. Correll. 

In the case of Corfield vs. Correll in the Supreme Court of the United Stages, Justice 
Washington, iu delivering the opinion of the court, used the following language. 

“ The privilege and immunities conceded by the Constitution of the United States to citizens in 
the several States,” are to be confined to those which are in their nature fundamental, and belong of 
right to the citizens ofall free governments. Such are the rights of protection of life and liberty, and 
to acquire and enjoy property, and to pay no higher impositions than other citizens, and to pass 
through or reside in the State at pleasure, and to enjoy the elective franchise as regulated and estab¬ 
lished by the law s or constitution of the State iu which it is to be exercised . 

And this is cited approvingly by Chancellor Kent. (2 Kent, sec. 72.) 

This ease is cited by the majority of the committee, as sustaining their view of the 
law, but we are unable so to understand it. It is for them an exceedingly unfortunate 
citation. 

In that case the court enumerated some of the “privileges of ci izens,” such as aro 

in their nature fundamental and belong of right to the citizens of all free governments ,” 
(mark the language), and among those rights, place the “ right of the elective franchise” 
in the eame category with those great rights of life, liberty and property. And yet the com¬ 
mittee cite this ca>e to show that this right is not a fundamental right of the citizen! 

But it is added by the court that the right of the elective franchise, “ is to be enjoyed 
as regulated and established by the State in which it is to be exercised.” 

These words are supposed to qualify the right, or rather take it out of the list of fun¬ 
damental rights, where the court had just placed it. The court is made to say by this 
attempt in the eame sentence, “the elective franchise is a fundamental right of the citizen, 
and it is not a fundamental right.” It is a “fundamental right,” provided the State sees 
fit to grant the right. It is a “ fundamental right of the eitizen,” but it does not exist, 
unless the laws of the State give it. A singular species of “ fundamental rights!” Is thero 
mot a clear distinction between the regulation of a light and its destruction? The State 
miay regulate the right, but it may not destroy it. 

What is the meaning of “regulate” and “ establish ?” Webster says :—Regulate— 
to put in good order. Establish—to make stable or firm. 

This decision then is, that “ the elective franchise is a fundamental right of the citi¬ 
zen of all free governments, to be enjoyed by the citizen, under such laws as the State 
may enact to regulate the right and make it stable or firm.” Chancellor Kent in the 
section referred to, in giving the substance of this opinion, leaves out the word establisn, 
regarding the word regulate as sufficiently giving the meaning of the court. 

This case is, in our opinion, a very strong one against the theory of the majority of 
the committee. 

The committee cite the language of Mr. Webster, as counsel in United States vs. 
Primrose. 

We indorse every word in that extract. We do not claim that a citizen of Pennsyl¬ 
vania can go into Virginia and vote in Virginia, being a citizen of Pennbylvania. No 
person has ever contended lor such an absurdity. We claim that when the citizen 
the United States becomes a citizen of Virginia, that the State of Virginia has neither 
right nor power to abridge the privileges of such citizen by denying him entirely the 
right of suffrage, and thus all political rights. The authorities cited by the majority of 
the committee do not seem to meet the case—certainly do not sustain their theory. 

The case of Cooper vs. The Mayor of Savannah, (4 Geo., 72) involved the question 
whether a free negro was a citizen of the United States ? The court, in the opinion 
says: 

Free persons of color have never been recognized as ciUzens of Georgia; they are not entitled to 
bear : rms. vde fo members oi the legis ature, or hold any c vil office; taey have no poli ical 
rights, but have personal r.ghis, one of which is personal lioerty. i 


104 


That they could not "ote, hold office, &c., was held evidence that they were not re¬ 
garded as citizens. 

In the Supreme Court of the United States, in the case of Scott rs. Sanford, (19 
Howard, p. 476,) Mr. Justice Daniel, in deliveting his opinion, used the following 
language as to the rights and qualities of citizenship: 

For v bo it may be asked is a dozen? Wh it do the character and status of citizens impnrt? 
Without r of contradiction, it do s not lrnpoit the condition of being private property, the sub¬ 
ject or ind victual power ai dovneis ip. Upon a i riucipie of etymology alone, the term citizen, 
as derived from civitas , conveys the i lea of co mection or identification with t ie State or govern¬ 
ment, ai.d a pardi ipa.'iou in its functions. But beyond tins there is no 1 , it is beli ved, t o be 
found, in theth ories of writers on government, or i t any actual experiment heretofore mod, an 
expos! ion of t.L,e te ra cittze i which lias not been u der -too l as conferring the actoal posse sion 
nnd enjoyment, <.r tbe perfect right of acquisition aud enjoyment, of an cn ire equality of priv¬ 
ileges, civil and political. 

And in the same case Chief Justice Taney said: “The words ‘people of the United 
States’ and ‘citizens’ are synonymous terms, and mean the same thing; they both de¬ 
scribe the political body, who, according to our republican institutions, form tho sove¬ 
reignty, and who hold the power, and conduct the Government through their repre¬ 
sentatives. They are what we familiarly call the sovereign people, and every citizen 
is one of this people, and a constituent member of this sovereignty.” (19 Howard, 
404.) 

In an important case in the Supreme Court ot the United States, Chief Justice Jay, * 
in delivering the opinion of the couit, said: “At the Devolution the sovereignty de¬ 
volved on the people, and they are truly the sovereigns of the country, but they are 
sovereigns without subjjcts, (unless the African slaves may be so called,) and have 
none to govern but themselves. The citizens of America are equal as feilow-citizens, 
and joint tenants of the sovereignty.” (Chishol vs . Georgia, 2 Dallas, 470.) 

In Conner vs. Elliott, (18 Howard,) Justice Curtis, in declining to give an enumera¬ 
tion ot all the “ privileges” of the citizen, said “According to the express words and 
clear meaning of the clause, no privileges are secured except those that belong to citi¬ 
zenship.” 

The Supreme Court said, in Corfield vs. Coryell, that the elective franchise is such 
privilege ; therefore, according to Justice Curtis, it belongs to citizenship. In a case 
in the Supreme Court of Kentucky, (1 Littell’s Kv. Deports, p. 333,) the court say : 

No one can, theref >re, in the correct sense of the term be a citizen of a St < f e who is not entitled 
up n the terms i rcr bed by tli; institutions < r th ; State to all the rig.iia and privileges conferred 
by these iustiuitiuns upon tho Ligtest c.ass of soci ty. 

Mr. Wirt, when Attorney General of tho United States, in an official opinion to bo 
found on p. 508, 1st volume Opinions of Attorney Generals, came to the tconclusion 
that the negroes were not citizens of the United States, for the reason that they had 
very few of the ‘ privileges” of citizens, and among the “privileges of citizens” of 
which they were deprived, th t they could not vote at any election. 

Webster defines a citizen to be a person, native or naturalized, who has the privilege 
of voting ior public officers, and who is qualified to fill offices in the gift of the people. 

Worcester defines the word thus : “An inhabitant of a republic who enjoys the rights 
of a citizen or freeman, aud who has a right to vote for public officers as a citizen of 
of the United States.” 

Bouvier, in his Law Dictionary, defines the term citizen thus: “One who, under 
tho Constitution and laws of the United States, has a right to v >te for Representa ives 
in Congress and other public officers, ana who is qualified to fill offices in the gift of 
tho people. ” 

Aristotle defines a “citizen” to be one who is a partner in the leg’slat we and juriici d 
power, and who shares in the honors of tlA state.” (Aristotle do Depub., lib. 3, cap. 

5, D.) ... 

The essential properties of Athenian citizenship consisted in the sharo possessed by 
every citizen in the legislature, in the election ot magistrates and in tho courts of 
justice. (See Smith’s Dictionary of Greek Antiquities, p. 289. ) 

The possession of the jus suffmgii , at least, if not also of the jus honorum, is tho 
principle which governs at this day in defining citizenship in the countries deriving 
their jurisprudence from the civil law. (Wheaton’s International Law, p. 892.) 

The Dutch publicist, Thorbecke, says: 

What coEStitut.es t‘ e dist'nctive chnracv r < 1 oar epoch is the development, of the riirht of ciM- 
zen hip. Ia ns most extended, a3 v> e.l as i s most restnc ed seuse, it me.udes a great many prop¬ 
erties. 

T.;e right of cthzensbip 13 the lijht of vo i:ig in tho government of tho locil, provincial or na- 
tt<> a! community cl v> li.cli one is a member. In mis last sense t ,e right of c. ize so p Signifies a 
participation in ihe right of vo.in?, in me general gov ernment, u3 member of the Sta.e. 

(Dev. & Er. Etr., tom. v, p. 383.) 

In a recent work of some research, written in opposition to female suffrage, tho 


105 


author takes the ground that women are not citizens, and urges that as a reason why 
they can properly be denied the elective franchise, his theory being that if full citizens 
they would be entitled to the ballot. He uses the following language: 

It is a question about which there may be some diversity of opinion what constitutes citizenship 
or who are cilizens. In a loose and improper seose the word citizen is sometimes used to denote 
any inhabitant of the countiy, but this is n<t a correct use of the word. Those, and no others, are 
properly citizens v ho were parti, s to the original compact by "which the government was formed, 
or their successors who are qualified to take part in the affairs of government by their votes in the 
elec'.ion of public officers. 

Women and children are represented by their domestic directors or heads ii whose wills theirs 
is supposed to be included. They, as well as others not entitled to vote, are not properly citiz ns, 
but are members ol the State, fuiiy entitled to the protection of its laws. A citizen, then, is a per¬ 
son entitled to vote in the elections. He is one of those in whom the sovereign power oi the State 
resides. (Jones on Suffrage, p. 48.) 

But all suck fallacious theories as this are swept away by the fourteenth amendment. 
Which abolishes the theory of different grades of citizenship, or different grades of 
rights and privileges, and declares all persons born in the country or naturalized in it 
to be citizens, in the broadest and fullest sense of the term, leaving no room lor cavil, 
and guaranteeing to all citizens tho rights and privileges of citizens ot the republic. 

We think we are justified in saying that the weight of authority sustains us in tho 
view we take of thi3 question. But considering the nature of it, it is a question depend¬ 
ing much for its solution upon a consideration of the government under which citizen¬ 
ship is claimed. Citizenship in Turkey or Russia is essentially different in its rights 
and privileges from citizenship in the United States. In the former, citizenship means 
no more than the right to the protection of his absolute rights, and the * ■ citizen ” is a 
subject; nothing more. Here, in the language of Chief Justice Jay, there are no sub¬ 
jects. All, native-born and naturalized, are citizens of the highest class; here all citi¬ 
zens are sovereigns , each citizen bearing a portion of the supreme sovereignty, and there¬ 
fore it must necessarily be that the right to a voice in the Government is the right and 
privilege of a citizen as such, and that which is undefined in the Constitution is unde-' 
fined because it is self-evident. 

Could a [State disfranchise and deprive of the right to a vote all citizens who have red 
hair; or all citizens under six feet in height ? All will consent that the States could not 
make such arbitrary distinctions the ground for denial of political privileges; that it 
would be a violation of the first article of the fourteenth amendment; that it would bo 
abridging the privileges of citizens. And yet the denial of 6he elective franchise to cit¬ 
izens on account of sex is equally as arbitrary as the distinction on account of stature, 
or color of hair, or any other physical distinction. 

These privileges of the citizen exist independent of the Constitution. They are nofc 
derived from the Constitution or the laws, but are the means ot asserting and protecting 
rights that existed before any civil governments were formed—the right of life, liberty 
and property. Says Paine, in his Dissertation upon the Principles of Government: 

Tbe right of voting for representatives is the primary right, by which other rights are protect , d. 
To take a wav this Halit is 10 re.uce man to a state of slavery, for slavery c insists in being subject 
to the wbl of another; and he thatvhas not a vote in the election of representatives is, in this case. 
The proposal, therefore, to disfranchise any mass of men is as criminal as the proposal to tako 
away property. 

In a state of nature, before governments were formed, each person possessed tho 
natural right to deiencl his liberty, his life and his property from the aggressions of his 
fellow men. When he enters into the free government ho does not surrender that 
right, but agrees to exercise it, not by brute force, but by the ballot, by his individual 
voice in making the laws that dispose of, control and regulate those rights. 

The right to a voice in the government is but the natural right of protection of one’s 
life, liberty and property, by personal strength and brute force, so modified as to bo 
exercised in the iorm of a vote, through the machinery of a freo government. 

The right of self-protection, it will not bo denied, exists in all equally in a state of 
nature, and the substitute for it exists equally in all the citizens after a free government 
is formed, for the free government is by all and for all. 

The people “ordained and established” the Constitution. Such is the language of 
the preamble. “We, the people.” Can it be said that tho peoplo acquire their priv¬ 
ileges from the instrument that they themselves establish? Does the creature extend 
rights, privileges, and immunities to the creator? No; the people retain all the rights 
which they have not surrendered; and if the people have not given to the Government 
the power to deprive them of their elective franchise, they possess it by virtue of citi¬ 
zenship. 

The true theory of this Government, and of all free governments, was laid down by 
our fathers in the Declaration of Independence, and declared to be “self-evident.” 
“A11 men are endowed by their Creator with certain inalienable rights; among these are 


106 


life, liberty, and the pursuit of happiness. That to secure these rights governments are 
instituted among men, deriving all their just powers from the consent o£ the governed.” 

Here is the great truth, the vital principle, upon which our Government is founded, 
and which demonstrates that the right of a voice in the conduct of the government, and 
the selection of the rulers, is a right and privilege of all citizens. 

Another of the self-evident truths laid down in that instrument is: 

That whenever any form of government becomes destructive of these ends, it is the light of the 
people to alt ror abolish i r , audio institute a new government, laying its foundations on such 
principles, and organizing ns powers iu such form, as to them shall seem most Lkely to effect their 
safety and happiness. 

How can the people carry out this right without the exercise of the ballot; and is not 
the ballot then a fundamental right and a privilege of the citizen, not given to him by 
the Constitution, but inherent, as a necessity, from the very nature of government ? 
Benjamin Franklin wrote: 

Thar, every man of the commonalty, except infants, insane persons and criminals, is, of com¬ 
mon right, and by the 1 tws of God, a freeman, and entitled to the free enjoyment or liberty. That 
liberty or freed >m consists in having an actual share in the appointment of those who frame the 
laws , and who are t_> be the gu irdiansol everv man ; liie, property, and peace, for the ml of one 
man is < s dear io him as the ail of another, and the p or man has an equal right but more, need 
to have representatives in the legislature than the rich one. That they who havt no voice n >r vole 
in'he electing of representatives do not enjoy liberty, but are absolutely enslaved to those who 
have votes and to their representatives ; fur to be enslaved Is to have governors whom other men 
have set over us, and be subject to lawsfcnade by the representatives of others, without having 
had npresen atives of our own to give consent iu our behalf.— Franklin's WorTcs , vol. 2, p. 372. 

James Madison said: 

Under every view of the subject it seems indispensable 'hat the mass of the citizens should not 
be without a voice in making the 1 tws which they are to obey, and in choosing tne magistrates 
who are to administer them.— Madison Papers, vol. 3, p. 14. 

Taxation without representation is abhorrent to every principle of natural or civil 
liberty. It was this injustice that drove our fathers into revolution against the mother 
country. 

T m very act "f taxing exercised over tho^e who are not represented appears to me to be depriv- 
i: g h°iuo! one ol their most essenti 1 lights as freemen, and if continued, seems to be, in effect, 
aii • n ire disfranchisement of every civil right. For what one civil right i3 worth a rimh alter a 
man spi< periy issuijtctio be ta&en from li in at pleasure without Ins consent? If a man is not 
hi 4 own assessor , in person or by d' puty, liis liberty is gone, or he is entirely at the mercy of 
others.— Olis's Rights of the Colo, ies, p. 58. 

Nor are these principles original with the people of this country. Long before they 
were ever uttered on this continent they were declared by Englishmen. Said Lord 
Summers, a truly great lawyer of England : 

Amongst all the rights and privileges appertaining untons, that cf having a share in the lerisla- 
tion, and being governed by such laws as we ourselves shall cause, is the most lundamenial and 
essential, as v ell as the most advantageous and beniicial. 

Said the learned and profound Hooker: 

By the natural law whereunto Almighty God hath made all subject, the lawful power of making 
laws to command whole politic societies of men, beiongeth so properly unto toe s ime en ire socie¬ 
ties, that for any prince or poten ate of what kind soever upon earth to exercise the same of 
himsf If, (or themselves ) and not. eitner by express commission immediate’y received from God, or 
else by authority derived at the first from their consent upon whose persons they impose laws, it 
is ro better than mere tyranny I Agreeable to the same just privileges ol natural equity , is that 
maxim tor the English const tt’on, that “Law to hi; d all must be assenied to by alland there 
can be no legal appearance of assent without some degree of representatiun. 

The great champion of liberty, Granville Sharpe, declared that— 

All British subjects, whether in Great Britain, Ireland, or the colonies, are equally free by the 
laws of nature ; they certainly are equally entit cd to t no same natural rights that are essential for 
their own preservation, be cause t"is privilege of “ having a share in the legislation” is not merely 
a British right, peculiar to t*us Island, but it is also a natural right, which cannot without the most 
flagrant and stimulating injustice be withdrawn from any part of the British empire by any worldly 
authority wha : soever. 

No tax can be levied without manifest robbery and injnstlce where this local and constitutional 
representation is wanting, because the Nuglish law abnors the Idea of taking the least property 
from freemen without their free consent. 

It is iniquitous (iniquum est, says the maxim) that freemen should not have the fi'ee disposal of 
their own effects, and whatever is iniqnltious can never be madelawful by any authority on earth, 
not even by tne united antuonty of king, lords, and commons, lor that would be contrary to the 
eternal laws of God, which are supreme. 

In an essav upon the “first principles of government,” by Priestly, an English 
writer of great ability, written over a century since, is the following definition of po- • 
litical liberty : • 

Political liberty I would say, consists In power, which the members of the ptate reserve to 
themseivcs, of arriving at the public offices, or at least of having votes in the nomination of those 
who fill them. . . ; 

In countries where every member of the society enjoys an cqnc.l power of arriving a the su->. 


107 


preme offices, and consequently of directing the st r ength and sentiments of the 7711010 community, 
there is a state ot the most perfect political liberty. 

On the other hand, i<» count ies where a man is excluded from tires ' offices, or from the power 
of voting fur proper persons to fill them, that man, whr ever oj the form of the g ■vorument, lias 
no share in the government aDd therefore fas no p Uticil liberty at all. And since every man 
retains and can never be deprived of Ins natural right of relieving hi uselt from a-1 oppression, 
that is, from everytning that has been imposed upon him without hisown consent, this mint be the 
only true and proper foundation oi ah the (governments sup-isi agin the world, and that to which 
the people wno compose tuem have an inalienable right to bring tnem bac£. 

It was from these great champions of liberty in England that our forefathers 
received their inspiration and the principles which they adopted, incorporated into the 
Declaration of Independence, and made the foundation and framework of our Govern¬ 
ment. And yet it is claimed that we have a Government which tramples upon these 
elementary principles of political liberty, in denying to one-half its adult citizens all 
political liberty, and subjecting them to the tyranny of taxation without representa¬ 
tion. It cannot be. 

When we desire to construe the Constitution, or to ascertain the powers of the Gov¬ 
ernment and the rights of the citizens, it is legitimate and necessary to recur to those 
principles and make them the guide in such investigation. 

It is an oft-repeated maxim set iorth in the bills of rights of many of the State con¬ 
stitutions that “ the frequent recurrence to fundamental principles is necessary for the 
preservation of liberty and good government. ” * 

Becurring to those principles, so plain, so natural, so like political axioms, it would 
seem that to say that one-half the citizens of this republican Government, simply and 
only on account of their sex, can legally be denied the right to a voice in the Govern¬ 
ment, the laws of which they aie held to obey, and which takes from them their prop¬ 
erty by taxation, is so flagrantly in opposition to the principles of free government, and 
the theory of political liberty, that no man could seriously advocate it. 

But it is said in opposition to the “citizen’s right” of suffrage that at the time of the 
establishment of the Constitution, women were in all the States denied the right of 
voting, and that no one claimed at the time that the Constitution of the United States 
would change their status ; that if such a change was intended it would have been ex¬ 
plicitly declared in the Constitution or at least carried into practice by those who framod 
the Constitution, and, therefore, such a construction of it is against what must have been 
the intention of the framers. 

This is a very unsafe rule of construction. As has been said, the Constitution neces¬ 
sarily deals in general principles; these principles are to be carried out to their legiti¬ 
mate conclusion and result by legislation, and we are to judge of the intention of those 
who established the Constitution by what they say, guided by what they declare on 
the face of the instrument to be their object. 

It is said by Judge Story, in Story on Constitution, “ Contemporary construction is 
properly resorted to to illustrate and confirm the text. * * It can never abrogate the 
text ; it can never fritter away its obvious sense ; it can never narrow down its true limit¬ 
ations. ” 

It is a well-settled rule that in the construction of the Construction, the objects for 
which it was established, being expressed in the instrument, should have groat influ¬ 
ence ; and when words and phrases are used which are capable of different construe- 
tions, that construction should be given which is the most consonant with the doclared 
objects of the instrument. 

We go to the preamble to ascertain the objects and purpose of the instrument. 
Webster defines preamble thus: “The introductory part of a statute, which states the 
reason and intent of the law.” 

In the preamble, then, more certainly than in any other way, aside from the language 
of the instrument, we find the intent. 

Judge Story says: 

The importance of examining the preamble for the purpose of expounding the language of a 
statute has been long fe t and universally conceded in a l juridical discussion. It is an admitted 
maxim * * that f ie preamble is a Key to open the m ( nd of the matters as to (he mischiefs to be 
remedied and theobjccts 10 be accomplished by the statute. * * It is properly resorted to where 
doubts or ambiguities a' ’se upon t.ie words of tho enacting part, lor if they are cle ir and unam¬ 
biguous, the e sterns little room for interpretation, except m cases leading to an obvious absurd-' 
ity or to a diiecc overthrow of the intention expressed in the preamble. (Story on the Constitu¬ 
tion, sec. 457.) 

Try this question by a consideration of the objects for which the Constitution was 
established, as set foiih in the preamble, “to establish justice.” Does it establish jus¬ 
tice to deprive of all representation or voice in the Government one-half of its adult 
citizens and compel them to pay taxes to and support a Government in which they 
have no. representation ? Is “taxation without representation” justice established? 

“To insure domestic tranquillity.” Does it insure domestic tranquillity to give all 
ihe political power to one class of citizens, and deprive another class of any participa- 



108 


tion in the government ? No. The sure means of tranquillity is to give “equal politi¬ 
cal rights to all,” that all may stand “equal before the law.” 

“ To provide for the common defense.” "We have seen that the only defense the citi¬ 
zen ha ; against oppression and wrong is by his voice and vote in the selection of the 
rulers and law makers. Does it, then, “ provide for the common defense,” to deny to one 
half the adult citizens of the republic that voice and vote ? 

“To secure the blessings of libeity to ourselves and our posterity.” As has been al¬ 
ready said, there can be no political liberty to any citizen deprived, of a voice in the govern¬ 
ment. This is self-evident; it needs no demonstration. Does it, then, “ secure the 
blessings of liberty to ourselves and our posterity,” to deprive one hall the citizens of 
adult age of this right and privilege ? 

Tried by the expressed objects for which the Constitution was established, as declared 
by the people themselves, this denial to the women citizens of the country of the right 
and privilege of voting is directly in contravention of these objects, and must, there¬ 
fore, be contrary to the spirit and letter of the entire instrument. 

And according to rule of construction referred to, no “contemporaneous construc¬ 
tion, however universal it may be, can be allowed to set aside the expressed objects of 
the makers, a3 declared in the instrument.” The construction which we claim for the 
1 st section of the fourteenth amendment is m perfect accord with those expressed ob¬ 
jects ; and even if there were anything in the original text of the Constitution at vari¬ 
ance with the true construction of that section, the amendment must control. Yet wo 
believe that there is nothing in the original text at variance with what wo claim to bo 
the true construction of the amendment. 

It is claimed by the majority of the committee that the adoption of the fifteenth 
amendment was by necessary implication a declaration that the States had the power 
to deny the right of suffrage to citizens for any other reasons than those of race, color, 
or previous condition of servitude. 

We deny that the fundamental rights of the American citizen can be taken away by 
“implication.” 

There is no such law for the construction of the Constitution of our country. The 
law is the reverse—that the fundamental rights of citizens are not to be taken away by 
implication, and a constitutional provision for the protection of one class can certainly 
not be used to destroy or impair the same rights in another class. 

It is too violent a construction of an amendment, which prohibits States from, or the 
United States from, abridging the right of a citizen to vote, by reason of race, color, or 
previous condition of servitude, to say that by implication it conceded to the States the 
power to deny that right for any other reason. On that theory the States could confine 
the right of suffrage to a small minority, and make the State government aristocratic, 
overthrowing their republican form. 

The fifteenth article of amendment to the Constitution clearly recognizes the right to 
vote, as one of the rights of a citizen of the United States. This is the language: 

“The right of citizens of the United States to vote shall not be denied or abridged 
by the United States, or by any State, on account of race, color, or previous condition 
of servitude.” 

Ifere is stated, first, the existence of a right. Second, its nature. Whose right is it ? 
The right of citizens of the United States. What is the right? The right to vote. 
And this right of citizens of the United States, States are forbidden to abridge. Can 
there be a more direct recognition of a right ? Can that be abridged which does not 
exist ? The denial of the power to abridge the right, recognizes the existence of the 
right. Is it said that this right exists by virtue of State citizenship, and State 1 iws and 
Constitutions? Mark the language: “The right of citizens of the United States'to 
vote;” not citizens of States. The right is recognized as existing independent of State 
citizenship. 

But it may bo said, if the States had no power to abridge the right of suffrage, why 
the necessity of prohibiting them? 

There may not have been a necessity ; it may have been done through caution, and 
because the peculiar condition of the colored citizens at that time rendered it ne¬ 
cessary to place their rights beyond doubt or cavil. 

It is laid down as a rule of construction by Judge Story that the natural import of 
a single clause is not to be narrowed so as to exclude implied powers resulting from its 
character simply because there is another clause which enumerates certain powers 
which might otherwise be deemed implied powers within its scope, for in such cases 
we are not to assume that the affirmative specification excludes all other implications. 
(2d Story on Constitution, sec. 449. ) 

There are numerous instances in the Constitution where a general power is given to 
Congress, and afterward a particular power given, which was included in the former ; 
yet the general power is not to be narrowed, because the particular power is given. On 


109 


this same principle the fact that by the fifteenth amendment the States are specifically 
forbidden to deny the right of suffrage on account of race, color, or previous condition 
ol servitude, does not narrow the general provision in the fourteenth amendment 
which guarantees the privileges of all the citizens against abridgment by the States on 
any account. 

The rule of interpretation relied upon by the committee in their construction of the 
fifteenth amendment is, “that the expression of one thing is the exclusion of an¬ 
other,” or the specification of particulars is the exclusion of generals. 

Of these maxims Judge Story says: 

They are susceptible of being applied, and often are ingeniously applied, to the subversion of the 
text and the objects of the instrument. The truth is, in ordtr to ascertain how far an affirmative 
or negative proviion excludes or implies others, we must look to the nature of the provision, the 
subject-matter, the objects, and the scope ol the instrument; these and these only can properly de¬ 
termine the rule of construction. (2 Story, 448.) 

It is claimed by the committee that the second section of the fourteenth amendment 
implies that the several States may restrict the right of suffrage as to other thaD male cit¬ 
izens. We may say oi this as we have said of the theory of the committee upon the ef¬ 
fect of the fifteenth amendment. It is a proposal to take away from the citizens guar¬ 
antees of fundamental rights, by implication, which have been previously given in ab¬ 
solute terms. 

The first section includes all citizens in its guarantees, and includes all the “privileges 
and immunities” of citizenship and guards them against abridgment, and under no 
recognized or reasonable rule of construction can it be claimed that by implication 
from the provisions of the second section the States may not only abridge but entirely 
destroy one of the highest privileges of the citizen to one half the citizens of the 
country. What we have said in relation to the committee’s construction of the effect 
of the fifteenth amendment applies equally to this. 

The object of the first section of this amendment was to secure all the rights, privi¬ 
leges, and immunities of all the citizens against invasion by the States. The object of 
the second section was to fix a rule or system of apportionment for Representa¬ 
tives and taxation; and the provision referred to, in relation to the exclusion of males 
from the right of suffrage, might be regarded as in the nature of a penalty in case of 
denial of that right to that class. While it, to a certain extent, protected that class of 
citizens, it left the others where the previous provisions of the constitution placed 
them. To protect the colored man more fully than was done by that penalty wa3 the 
object of the fifteenth amendment. 

In no event can it be said to be more than the recognition of an existing fact, that 
only the male citizens were, by the State laws, allowed to vote, and that existing 
order of things was recognized in the rule of representation, just as the institution of 
slavery was recognized in the original Constitution, in the article fixing the basis of 
representation, by the provision that only three-fifths of all the slaves (“other persons”) 
should be counted. There slavery was recognized as an existing fact, and yet the 
Constitution never sanctioned slavery, but, on the contrary, had it been carried out ac¬ 
cording to its true construction, slavery could not have existed under it; so that the re¬ 
cognition of facts in the Constitution must not be held to be a sanction of whatsis 
so recognized. 

The majority of the committee say that this section implies that the States may 
deny suffrage to others than male citizens. If it implies anything it implies that 
the States may deny the franchise to all the citizens. It does not provide that they 
shall not deny the right to male citizens, but only provides that if they do so deny 
they shall not have representation for them. 

So, according to that argument, by the second section of the fourteenth amendment 
the power of the States is conceded to entirely take away the right of suffrage, even 
from that privileged class, the male citizens. And thus this rule of “implication” goes 
too far, and fritters away all the guarantees of the Constitution of the right of suffrage, 
the highest of the privileges of the citizen; and herein is demonstrated the reason and 
saf ty of the rule that fundamental rights are not to be taken away by implication, but 
only by express provision. 

When the advocates of a privileged class of citizens under the Constitution are driv¬ 
en to implication to sustain the the theory of taxation without representation, and 
American citizenship without political liberty, the cause must be weak indeed. 

It is claimed by the majority that by section 2, article 1, the Constitution recognizes 
the power in States to declare who shall and who shall not exercise the elective fran¬ 
chise. That section reads as follows: 

The House of Representatives shall be composed of member? chosen every scond year by tho 
people of tue several States and tin electors in each state st all have the qualifications reduisite 
for electors of the most numerous braucli oftlie State legislature. 


110 


The first clause of this section declares who shall choose the.Representatives—mark 
the language—“Representatives shall be chosen by the pe< pie of the States,” not by the 
male people, not by certain classes of the people, but by the people; so that the con¬ 
struction sought to be given this section, by which it would recognize the power of the 
State to disfranchise one-half the citizens, as in direct contravention of the first clause 
of the section, aud of its whole spiiit, as well as of the objects of the instrument. The 
States clearly have no power to nullify the express provisions that the election shall be 
by the people, by any laws limiting the election to a moiety of the people. 

It is true the section recognizes the power in the State to regulate the qualifications 
of the electors; but as we have already said, the power to regulate is a very different 
thing from the power to destroy. 

The two clauses must be taken together, and both considered in connection with the 
declared purpose and objects of the constitution. 

The Constitution is necessarily confined to the statement of general principles. 
There are regulations necessary to be made as to the qualifications of voters, as to their 
proper age, their domicile, the length of residence necessary to entitle the citizen to 
vote in a given State or place. These particulars could not be provided in the Consti¬ 
tution but are necessarily left to the States, and this section is thus construed as to be 
in harmony with itself, and with the expressed objects of the framers of the Constitu¬ 
tion and the principles of free government. 

When the majority of the committee can demonstrate that “the people of the 
States,” and one-half the people of the States, are equivalent terms, or that when the 
Constitution provides that the Representatives shall be elected by the people, its re¬ 
quirements are met by an election in which less than one-half the adult people are 
allowed to vote, then it will be admitted that this section, to some extent sustains them. 

The committee say, that if it had been intended that Congress shou d prescribe the 
qualifications of electors, the grant would have given Congress that power specifically. 
We do not claim that Congress has that power; on the contrary, admit that the States 
have it; but the section of the Constitution does prescribe who the electors shall be. 
That is what we claim—nothing more. They shall be “the people;” their qualifica¬ 
tions may be regulated by the States; but to the claim of the majority df the com¬ 
mittee that they may be “qualified” out of existence, we cannot assent. 

We are told that the acquiescence by the people, since the adoption of the Constitu¬ 
tion, in the denial of political rights to women citizens, and the general understanding 
that such denial was in conformity with the Constitution, should be taken to settle the 
■constiuetion of that instrument. 

Any force this argument may have it can only apply to the original text, and not to 
the fourteenth amendment, which is of but recent date. 

But, as a general principle, this theory is fallacious. It would stop all political pio- 
gress; it would put an end to all original thought, and put the people under that 
tyranny with which the friends of liberty have always had to contend—the tyranny of 
precedent. 

From the beginning, our Government has been right in theory, but wrong in prac¬ 
tice. The Constitution, had it been carried out in its true spirit, and its principles 
enforced, would have stricken the chains from every slave in the republic long since. 
Yet, for all this, it was but a few years since declared, by the highest judicial tribunal 
of the republic, that, according to the “general understanding,” the black man in this 
■country had no rights the white man was bound to respect. General understanding 
and acquiescence is a very unsafe rule by which to try questions of constitutional law, 
and precedents are not infallible guides toward liberty, and the rights of man. 

Without any law to authorize it, slavery existed in England, and was sustained and 
perpetuated by popular opinion, universal custom, and the acquiescence of all depart¬ 
ments of the government as well as by the subjects of its oppression. A few fearless 
champions of liberty struggled against tbe universal sentiment, and contended that, by 
the laws of England slavery could not exist in the kingdom; and though for years 
unable to obtain a hearing in any British court, the Sommersett case w r as finally tried 
in the Court of King’s Bench in 1771, Lord Mansfield presiding, wherein that great and 
good man, after a long and patient hearing, declared that no law of England allowed 
or approved of slavery, and discharged the negro. And it was then judicially declared 
that no slave could breathe upon the soil of England, although slavery had up to that 
time existed for centuries, under the then existing laws. The laws were right, but the 
practice and public opinion were wrong. 

It is said by the majority cf the committee that “if the right of female citizens to 
suffrage :s vested by the Cons' 1 itution, that right can be established in tfie courts.” 

We°respectfully submit that, with regard to the competency and qualification of 
electors for members of this House, the courts have no jurisdiction. 


Ill 


This House is the sole judge of the election return and qualification of its own mem¬ 
bers, (article 1, section 5, of Constitution;) and it is for the House alone to decide upon 
a contest, who are, and who are not, competent and qualified to vote. The judicial 
department cannot thus invade the prerogatives of the political department. 

And it is therefore perfectly proper, in our opinion, for the House to pass a declara¬ 
tory resolution, which would be an index to the action of the House, should the ques¬ 
tion be brought before it by a contest for a seat. 

We, therefore, recommend to the House the adoption of the following resolution: 

Jt'soloed, by the House of Representatives, That the right of suffrage is one of tho 
inalienable rights of citizens of tho United States, subject to regulation by tho States, 
through equal and just laws. 

That this right is included in the “privileges of citizens of the United States," which 
are guaranteed by section 1 of article 11 of amendments to the C >nstit,ution of tho 
United States; and that women citizens, who are otherwise qualified by the laws of tho 
State where they reside, are competent voters for Representatives in Congress. 

WM. LOUGHRIUGE. 
BENJ. F. BUTLER. 


H. Rep. 22, pt. 2——^ 



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